| Rogowsky v McGarry |
| 2008 NY Slip Op 08113 [55 AD3d 815] |
| October 21, 2008 |
| Appellate Division, Second Department |
| Joshua D. Rogowsky et al., Appellants, v Peter McGarry,Respondent. |
—[*1] Rosen & Livingston, New York, N.Y. (Deborah B. Koplovitz of counsel), forrespondent.
In an action, inter alia, to recover damages for breach of an oral agreement, the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.),dated September 20, 2007, as, in effect, granted those branches of the defendant's motion pursuant toCPLR 3211 (a) (7) which were to dismiss the first, second, fifth, and ninth causes of action, andpursuant to CPLR 3212 for summary judgment dismissing those causes of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiffs are the sons of Edward Rogowsky (hereinafter the decedent) who died in March2001. For the last 15 years of his life, the decedent and the defendant lived together as life partners in aBrooklyn cooperative apartment (hereinafter the apartment). The decedent executed a will inDecember 1992, inter alia, naming the defendant as executor and bequeathing to him his right, title, andinterest in the apartment together with the proprietary lease. The decedent made monetary gifts to twonephews, but did not make any outright bequests to the plaintiffs except to name them as alternatebeneficiaries of his residuary estate in the event the defendant predeceased him. In June 2001 theplaintiffs executed waiver and consent forms, and the decedent's will was admitted to probate inSurrogate's Court, Kings County. In November 2001 letters testamentary were granted to thedefendant.
In January 2007 the plaintiffs commenced this action against the defendant claiming, inter alia, thatthe decedent, in the presence of the defendant, had expressed an intention prior to his death tobequeath his interest in the apartment to the plaintiffs. The plaintiffs alleged that the defendant promisedto honor the decedent's wishes in exchange for the forbearance by the plaintiffs from contesting thedecedent's will and [*2]that the defendant breached the agreement byselling the apartment and retaining the proceeds of sale.
The defendant moved, inter alia, pursuant to CPLR 3211 (a) (1) to dismiss the first, second, fifth,and ninth causes of action in the complaint and pursuant to CPLR 3212 for summary judgmentdismissing those causes of action, and the Supreme Court granted the motion. We affirm the orderinsofar as appealed from.
The defendant established his prima facie entitlement to judgment as a matter of law on the firstcause of action alleging breach of an oral agreement by coming forward with evidentiary proof thatthere was no enforceable agreement between the parties (see Alvarez v Prospect Hosp., 68NY2d 320 [1986]). In opposition, the plaintiffs failed to raise a triable issue of fact (see Matter of Morse, 1 AD3d 516,517 [2003]). The terms of the alleged agreement were vague and unclear (see generallyDombrowski v Somers, 41 NY2d 858, 859 [1977]). Moreover, the mere execution of thewaivers and consents did not constitute valid consideration since the plaintiffs never petitioned torevoke the waivers and consents (see generally Matter of Sisko, 270 AD2d 276 [2000]) andnever alleged that the decedent's will was the result of fraud, overreaching, or lack of testamentarycapacity. While forbearance from the assertion of a legal right has long been held to constitute validconsideration, the plaintiffs under these circumstances did not forbear from seeking anything of value.Therefore, the Supreme Court properly awarded summary judgment to the defendant on this cause ofaction.
The causes of action sounding in fraud and unjust enrichment were properly dismissed pursuant toCPLR 3211 (a) (7), as the underlying basis for these claims was the alleged breach of the oralagreement. Since the plaintiffs failed to allege that the defendant violated a legal duty independent of thepurported oral agreement, they are unable to assert a viable cause of action sounding in fraud or unjustenrichment (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 389 [1987]; Schenkman v New York Coll. of HealthProfessionals, 29 AD3d 671, 672 [2006]; Brown v Brown, 12 AD3d 176, 176-177 [2004]; Prospect Plaza Tenant Assn., Inc. v New YorkCity Hous. Auth., 11 AD3d 400, 401 [2004]). Further, the cause of action sounding inpromissory estoppel was also properly dismissed, as "there was no clear and unambiguous promiseupon which the plaintiffs could have reasonably relied to sustain a cause of action for breach of contracton a theory of promissory estoppel" (Asgaharv Tringali Realty, Inc., 18 AD3d 408, 409 [2005]).
The plaintiffs' remaining contentions either are without merit or have been rendered academic byour determination. Santucci, J.P., Dillon, Dickerson and Chambers, JJ., concur. [See 2007NY Slip Op 32983(U).]